Prosecuting Perpetrators of Crimes Committed outside of National Borders

Since the war in former Yugoslavia, and especially since the German Code of Crimes against International Law entered into force—one day before the International Criminal Court began its work on 1 July 2002—, Germany has begun conducting legal proceedings under the terms of universal jurisdiction against those accused of crimes against humanity and war crimes. In doing so, Germany has followed the example of Belgium and Spain and itself become a model for other European countries.

Underlying these legal proceedings is the principle of universal jurisdiction. Much has already been written about its genesis, content, and scope, so that addressing these aspects is unlikely to yield interesting new insights. Analysis that does not center on procedure or legal doctrine but rather on the question of finding justice appears more promising. How does a court far away from the site of the crime investigate the occurrences involved? What influences the judicial evaluation of the crimes that occurred? Which expectations are associated with the judgment?

Another set of topics to be studied is how judgments are received and understood in those places where crimes have occurred and in neighboring regions. Do those affected have the impression that the administration of justice so far away from the reality of their own lives is useful for them, for example, by not only recognizing their suffering but also providing material aid? What impact does the activity of a court in another part of the world have on the judicial system and policy making in the country where the crime took place? Have attempts been made in the countries in which crimes against humanity or war crimes occurred to make use of universal jurisdiction themselves, for example by prosecuting French citizens because of their possible involvement in the Rwandan genocide?

The aim of this project is to find answers to these questions by employing a dual perspective. Geographically, the study will focus on regions of the world that have so far been at the center of what is referred to here as a "civilizational undertaking" and where there is reason to believe that they will continue to be at the center: Africa and Europe. Crimes committed in Ivory Coast, Uganda, Rwanda, the Central African Republic, and the Democratic Republic of Congo were and are the subject of proceedings in European courts, including Germany’s Higher Regional Courts in Düsseldorf, Frankfurt/Main, and Stuttgart. The decisions reached so far provide information on: 1) the respective court’s understanding of the underlying armed conflict; 2) the evaluation of evidence and witnesses’ testimony in general; and 3) the assessment of individual criminal responsibility, including aspects relevant under international law.

Interviews will be conducted with various actors in Germany who have been involved in these proceedings (representatives of the Office of the Federal Prosecutor and judges at the Higher Regional Courts, for example). Statements made by these interlocutors will be assessed together with statements from the victims of crimes in those countries where they took place. The expectation is that consideration of their similarities and differences will reveal a world that is growing together, in other words, a world in which continuing differences no longer have the strength to make the entire "civilizational undertaking" fail.

The investigation of the administration of justice will be expanded to include other European courts and the International Criminal Court (ICC) in The Hague to address the question of the extent to which proceedings are coordinated between national and international criminal courts. The working hypothesis here is that this kind of coordination is to date rudimentary at best. The expectations regarding national court systems that are generally expressed by the public in each country appear to differ from those formulated by the international community with respect to the ICC.